The history of criminal law has claimed an increasing share of the attention of legal and social historians in recent years. Undeterred by Professor Milsom's verdict that in the area of English criminal law, ‘nothing worthwhile was created,’ historians have plunged into the study of doctrine and practice in the common law courts. The attractions of the source material are undoubtedly great. The law is relatively straightforward, at least compared to land litigation. The cases are interesting and sometimes sensational. The subject matter promises rewards in understanding the relationship between social change and legal development. And the study may even be immediately relevant, shedding light on current law enforcement problems.

The late King Hamlet's ghost and þorgerð have similar problems. Both want to oblige someone to take action on behalf of a corpse. And both enlist the aid of part of that corpse or its facsimile in their efforts. Old Hamlet's ghost must busy himself about this matter because he was murdered, and in such a fashion that his body showed no sign of foul play. Clearly, before he can charge someone to avenge him he must announce that there is something to avenge.

Lawlessness, both the more subtle manipulative and the cruder violent varieties, has long been seen as one of the most marked features of England in the fourteenth and fifteenth centuries. Even in recent years historians have found it a difficult subject to handle. With the notable exception of K. B. McFarlane, and more recently M.T. Clanchy and G.L. Harriss, few have been prepared to deny that there was something intrinsically wrong with the administration of the law in this period, even though they may concede that it was no ‘wronger’ than in the thirteenth century, merely better documented. Underlying these discussions there is, in Clanchy's words, the often unspoken assumption ‘that the king's justice really was the norm and that justice emanated from the centre to the localities.’ Thus, the need for an extension of royal justice is set against local abuses, which all law-abiding men from the king downwards would have wished eradicated.

Historians' impressions of the position of agricultural servants and wage labourers within the medieval English rural society and economy remain as imprecise as the picture which most contemporary documents provide. Research to date on medieval agricultural labourers has concentrated upon estate workers within the seigneurial economy, primarily because manorial accounts provide fairly detailed information about famuli or estate labourers employed by particular manors, their terms of employment, and the remuneration they received. But the role of servants and labourers employed on tenant holdings by medieval villagers, and their importance for non-agricultural production within rural communities, are still extremely uncertain. They appeared fleetingly if at all in manorial documentation, which seldom had reason to be concerned with them as such, while another source which historians have used to approach the problem, nominative polltax returns furnishing household or occupational information, poses serious difficulties of interpretation.

On October 3, 1881, William Henry Rawle, the distinguished Philadelphia lawyer and scholar, addressed students at the University of Pennsylvania Law School hoping to illustrate, ‘in a very general and elementary way,’ the differences between the growth of English and early Pennsylvania jurisprudence. ‘It would have been more interesting and more broadly useful,’ Rawle apologized to his audience, ‘if the attempt could have been extended to embrace the other colonies which afterwards became the United States, for there would have been not only the contrast between the mother country and her colonies, but the contrast between the colonies themselves.’ Rawle was confident that such an examination would have revealed how ‘in some cases, one colony followed or imitated another in its alteration of the law which each had brought over, and how, in others, the law was changed in one colony to suit its needs, all unconscious of similar changes in another.’ ‘Unhappily,’ Rawle explained, ‘this must be the History of the Future for the materials have as yet been sparingly given to the world.’

Exhortations to maintain a reasonable balance between crimes and punishments, condemnations of excessive penal severity and pleas for a reduction in the number of crimes for which death was the penalty do not originate in the eighteenth century. Reform of the criminal law had been an unattained goal of both Puritans and Levellers during the Commonwealth period. Reform efforts ironically paralleled the immense increase of new statutory felonies in eighteenth century England and throughout the western world a simultaneity of attention was paid to reformulating the nature and purpose of punishment. A vigorous reformist sentiment can be observed among enlightened men in Europe and America regarding the necessity of an amelioration in the criminal codes of their nations and central to much of this was the principle of proportionality, that every penalty be proportioned to the offense. In the American colonies, the initiation of rebellion presented an unparalleled opportunity for change.

Until assuming the violent form most strikingly exemplified in France by the explosions of 1789 and 1848, the century-long movement of resistance and emancipation of the European peasantry mainly occurred in the legal domain. The focus of opposition was towards the attempt to impose a normative system which sought to undermine the working rules of peasant communities. It was carried through, for example, by protesting against seignorial obligations or by asserting claims to the free use of forests and communal pastures. In such actions the peasant will, revitalized by periodic subsistence crises, tried to maintain control over legal institutions, and therefore to retain relative social autonomy.

During the past twenty years historical investigations of crime and criminal justice have increased considerably. This new subfield has been hailed enthusiastically by many of its practitioners: Douglas Hay considers it one that offers a key to ‘unlocking the meanings of eighteenth century social history.’ John Styles and John Brewer view the study of crime and law as a ‘point d'appui for a social history approach that embraces both the history of society and the issues of power and authority, an approach, in other words, that resolves the “crisis of social history.”’ Moreover, Marzio Romani describes this research as one that utilizes crime as a 'symptom,’ as a link between ‘conjuncture’ and ‘structure.’

A recent polemical essay by Alan Macfarlane constructed a picture of the social structure of medieval rural England premised on the notion that there was little difference in the nature of family attachment to land between freeholders and those who held their property ‘according to the customs of the manor.’ This essay has received severe criticism from R. H. Hilton, who argues that it ‘ignores the implications of the considerable predominance in many areas of customary land held in villein (i.e. servile) tenure, attempting to assimilate it to freehold as though it were equivalent to sixteenth century copyhold.’ The scale of the difference between these two positions may be attributed to the current state of research into the operation of customary law and its tribunals.

In the history of English law and the Puritan Revolution, the Levellers are generally considered opponents of the common law, who increasingly used natural law arguments in their revolutionary propaganda. John Lilburne, one of the foremost Leveller leaders, in the tract The Legall Fundamentall Liberties of the People of England published in June 1649 and at his trial for treason in October 1649 used the common law as presented in Sir Edward Coke's The Institutes of the Laws of England and his report of Dr. Bonham's Case, to support his attack on the Rump Parliament. This was only the second use of Dr. Bonham's Case in public controversy as opposed to in a private law matter. Lilburne's reliance on The Institutes and Dr. Bonham's Case also reveals how Coke's legal thought could be integrated into revolutionary thinking, i.e., the limitation of the powers of parliament, not just through judicial review, but through individual citizens' interpretation of statutory law and their individual judgment of the validity of laws. The tenet of radical Protestantism, the supremacy of individual judgment, finds expression in Lilburne's interpretation of statutes and his belief in the limited powers of Parliament. The idea that radical Protestantism led to democratic theory and shook the foundations of established institutions is given additional support by Lilburne's propaganda and defense of himself.

In 1930 Richard B. Morris published Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries. The monograph included a chapter on the legal status of colonial women that became extremely influential within a short time of its appearance. Morris's influence continues half a century later. Several books published in 1980 cite him as one of their primary authorities on women's rights: Linda K. Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America; Lyle Koehler, A Search for Power: The ‘Weaker Sex’ in Seventeenth-Century New England; and Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800. Other influential books and articles also rely heavily on Morris, including A Little Commonwealth: Family Life in Plymouth Colony by John Demos, ‘The Illusion of Change: Women and the American Revolution,’ by Joan Hoff Wilson, and ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ by Gerda Lerner. In fact, almost every published sentence on women's rights in early American law is followed by a footnote citing chapter three of Studies in the History of American Law. In The Bonds of Womanhood (1977), Nancy F. Cott declared that Morris's chapter ‘has become the standard essay on colonial women under the common law.’

Discerning transitions in the emotional content of family relationships is a daunting task. In The Family, Sex and Marriage in England 1500–1800, Lawrence Stone has accepted the challenge exploiting ‘every possible type of evidence’ to detect an evolution in social attitudes. Reactions have generally been favorable; merits are thought to outweigh shortcomings. Even his most derisive critic concedes that the book is ‘important’ because it is of topical interest and attempts to illuminate an area of history which has previously remained obscure.